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An observer of comparative criminal procedure developments cannot help but notice that there is a movement afoot to soften a generation of harsh sentencing practices. As recently as Monday, the New York Times reported a unique alliance to eliminate mandatory minimum sentences for nonviolent drug offenders between U.S. Senator Rand Paul, a libertarian, and Attorney General Eric Holder, a democrat. This hitherto unimaginable alliance supports early release for those sentenced under now-abolished crack sentencing guidelines that disproportionately sentenced crack offenders more severely than those convicted of powder cocaine crimes and more sentencing discretion for judges imposing sentences for nonviolent drug offenders. Another republican-Holder alliance supports restoring voting rights to felons. And not so far in the past, the U.S. Supreme Court held life sentences for juveniles to be unconstitutional.

Has Washington suddenly seen the humanitarian light? Not really. The libertarian/republican support for more liberal sentencing laws comes from a view of long prison sentences as both ineffective and extremely expensive and a general concern with protecting personal liberties from big government. The two sides share a recognition that harsh sentencing laws have also had a disproportionate impact on minorities.

It may not be coincidence that harsh sentencing laws have come under fire in other jurisdictions, albeit from the courts and not directly from legislators or politicians. In Case of Vinter and Others v. UK, the European Court of Human Rights recently ruled that whole life sentences were incompatible with the European Convention on Human Rights if there were no possibility of a sentence review during the term. It also held that UK laws on the power to release a whole-life prisoner were unclear. Even more recently, in Canada, the Court of Appeal for Ontario ruled in R. v. Nur that mandatory minimum sentences for gun possession are cruel and unusual punishment and thus unconstitutional. The Court heard six cases together and struck down a three-year mandatory minimum sentence for a first offence of possessing a loaded gun and for five years on a second offense. The Court apparently relied, among other things, on social science data that showed mandatory minimums do not deter and do not make communities safer. The court expressed concern that such “draconian mandatory minimum penalt[ies]” endangered the public’s respect and confidence in the criminal justice system. Id. at 180.

It would appear that all three countries are beginning to recognize that prior law-and-order legislation created problems that must now be dealt with. Without any doubt, the crash of 2008 and the weakness of current economies has shown that extremely punitive sentencing regimes are economically unsupportable. Racial disparities have reached the public consciousness. Importantly, with falling crime rates there is less political advantage to the law-and-order agenda. And social science has contributed to the sense that, given these problems, there is little purpose in keeping certain offenders in prison. This multi-dimensional approach may yet result in more rational sentencing regimes worldwide.

Miller v. Alabama, 132 S.Ct. 2455 (2012) (holding that “that mandatory life without parole for those under age of 18 at the time of their crime violates the 8th Amendment’s prohibition on cruel and unusual punishments.").

Graham v. Florida, 560 U.S. 48 (2010) (holding that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.”).